!!Экзамен зачет 2023 год / metaphysics of modern tort law

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manufactured goods is recoverable despite the manufacturer's precautionary measures, is justified expressly on the ground of policy. The defendant manufacturer is no longer charged with liability by virtue of his actions, as it is manifest that he did not will the harm his actions caused; rather, he is assigned liability simply because he is its useful conduit, as he is in a position to spread the losses arising from the use of his product among its users in the form of increased costs. [FN45]

*944 Because this understanding of liability is divorced from responsibility grounded in will and control, it is but a short step from achieving a rationalized distribution of the costs of injury through a system of strict liability, to establishing such an administrative system directly, bypassing tort law and its concern with adjudicating the facts of causation and the parties' responsibility. Recognizing that such facts are superfluous to a goal of administering payment for misfortune, the compensation theorists have proposed precisely that route; for the most thoroughgoing and consistent of these, the origin of the misfortune is not relevant to eligibility for payment. Despite claims to the contrary, such systems do not present a radical break with principles of tort law but only a consistent extension of those forming the original rationale of strict liability, in which the defendant's will and the possibility of his having acted otherwise are similarly peripheral concerns. Indeed, on that rationale even the physical genesis of the injury from the use of a given product is less a central inquiry than simply an administrative hook, a means of sorting injured plaintiffs with the companies that will process the costs of their injuries. [FN46] Once, as under the original theory of strict liability, efficient administration of payment for injuries is seen as the object of tort law, rather than fault-finding or deterrence, it follows as a matter of course that tort law should come to be thought a cumbersome and archaic means of reaching that object, and that proposals should surface arguing for its replacement with purely administrative payment systems such as the compensation theorists propose.

*945 The proponents of such systems are heirs of the Legal Realists, and of the administrative and regulatory state that Realism helped to justify through its understanding of law as a means of promoting social utility. ("Realism," that metaphysical doctrine which denies the reality of ideas, here operated against the idea of law as an end in itself independent of utility.) Like the Realists and their New Deal political counterparts, the modern proponents of accident compensation systems are self-styled "pragmatic reformers" who seek to ameliorate social conditions by replacing existing law and legal structures with administrative mechanisms for managing those conditions directly. Or, rather, they understand existing law and legal structures as already constituting administrative mechanisms imperfectly aimed at social utility, and so in need of and susceptible to the streamlining "correction" they propose. [FN47] Thus a system of compensation appears to be an adequate, indeed superior replacement for tort law; no residuum, inaccessible to such rationalization, appears--as it could not, consistent with the premise that law is a matter of social utility and therefore available to such rationalization.

This apparent accessibility of all of law to the rationalizing urge, to streamlining in the name of cost savings, knows only the limits imposed by costs themselves. We can see this in Coase's treatment of transaction costs as a limit on otherwise limitless negotiability, and in Calabresi's determination to mix modes of rationalization based on their relative efficiency and administrative costs. This "limitation" is, then, no limit at all on the underlying rationale: the idea that cost considerations govern all law and all action, and that nothing--that is, nothing real--impedes or is unassimilable to this model. Thus, for example, on Calabresi's account, justice is seen either as archaic and irrational in impeding resort to an otherwise efficient reform, and therefore as illusory and destined to evaporate; or it is seen as itself a matter of goals to be met and of consistency across categories viewed as equivalent, and thus as yet another venue for policy determinations, assessments of efficacy, and practical strategy.

Despite this seemingly limitless power of rationalization to reach all of law and action, or perhaps because its very limitlessness is vaguely sensed as troubling, segmentation is a recurring theme in the compensation literature. Pockets of liability--only automobile collision cases, for example, or only *946 medical malpractice cases- -are proposed to be removed from the tort system and subjected to the compensation regime. [FN48] Similarly, Calabresi offered the compensatory model as only a partial solution to the problem of accident costs.

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Yet the justification for such segmentation is elusive. Given the program's justificatory foundation in pragmatic utility, any such division is inherently contingent and temporary, itself dependent on empirically variable assessments of utility. Moreover, as can be seen from the case of workers' compensation-- the original segmented compensatory program--segmentation creates instability, for reasons transparent to economists: Because the amounts awarded under workers' compensation, as under the recent compensation proposals, are less than damages awardable under the tort litigation system, there is an incentive to evade workers' compensation and sue in tort whenever possible, as when a claim can be made for strict products liability in connection with a workplace injury. This evasion, though lamented by commentators, is an inevitable byproduct of a system that is both segmented and understood to be driven by cost (incentive) considerations, and is "resolved" only by an expansionary dynamic that is hostile to segmentation. [FN49] And, as noted, insofar as the segmentation of tort law is itself driven by cost concerns, it reflects, rather than challenges or limits, the underlying theory that all of law is available and properly employed to the end of minimizing and managing costs; the law is dissected and rearranged not out of any sense of the theory's limitations but, to the contrary, out of its dominance.

The theory of the compensatory programs provides no grounds, then, for limiting their reach. On the contrary, it provides a built-in dynamic toward expansion, not only in order to limit opportunities for evasion and other sources of inefficiency, but also because the compensatory rationale itself calls into question as arbitrary any limitations on the range of covered events. Hence the issue arises--inevitably, given the premises of the pro- grams--as to how it can be justified to limit compensation to victims of only certain kinds of accidents, or indeed to accidents at all, that is, to those events seen to arise from discernible human causes such as faulty products and now subject to the tort law. Rather, it is asked, should not all misfortune be entitled to compensation on the same grounds? Such arguments bring into question distinctions of *947 compensatory entitlement drawn, for example, between congenital or mysterious deformities, and those traceable to negligent drug testing. [FN50] The compensatory rationale, triggered as it is by the fact of harm rather than by the way the harm arose, provides no grounds for distinguishing such cases. Accordingly, the most thoroughly worked-out of the compensation proposals--titled, significantly, Doing Away With Personal Injury Law and Doing Away With Tort Law [FN51]--are the most sweeping.

Yet the idea of universal compensation, though it avoids the inconsistency presented by segmentation, raises other problems. As the grounds for distinguishing among misfortunes to be compensated are seen to evaporate, so too does the sense in which the contemplated payments constitute compensation, as distinct from social welfare maintenance in general. Since any misfortune would confer an entitlement to payment under a universal system, "misfortune" itself comes to appear as simply any shortfall from some posited baseline of well-being, such as minimum income, the baseline already widely employed by other social welfare programs. The distinctiveness of tortious injury as a ground of compensation--its connection to the action of a tortfeasor--is lost on this view and, as reasonless, appears dispensable, an antique superstition. Finally, tort law itself appears superfluous to the compensation orientation, and so it is proposed that we "do away with" it. In this way the dynamic of the idea of compensation for tortious injury (understood as misfortune) can be seen to overcome its original object and boundaries.

3. The Conception of Tortious Events Underlying the Theory and Programs of Tort Compensation

We are now in a position to highlight some of the distinctive elements of the compensation view of torts, and to compare them with those of the Coasian economic account offered in the previous section. As before, these elements are implicit understandings of action and events that appear in the theoretical and programmatic treatment and allow it to take the shape that it does, rather than explicit tenets voiced by the theorists in question.

*948 In treating tort losses on the model of losses or shortfalls addressed by existing social welfare programs, the proponents of the compensation proposals treat tort losses as like the misfortunes dealt with by existing programs. Like those other misfortunes, tort losses appear on this model as adventitious mishaps to be spread, rather than willful wrongs to be deterred. The programs' concern is triggered by the fact of loss, not by the nature of its genesis, which is seen as largely arbitrary and unimportant. Accordingly, such programs commonly

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dispense with the determination of fault, and this abandonment of a traditionally central concern of tort law is the hallmark of the compensation proposals offered to replace it. [FN52] In this, and in these programs' emphasis on relief rather than on control or deterrence, tortious loss is treated not as the product of a controllable cause that it is worthwhile to pursue, but instead as though its genesis were random. [FN53]

In this treatment of tortious loss as random, there appears a sense of the events at issue in tort law that is strikingly diametric to that of the Coasian economic account: Whereas on the latter view torts are treated as like any other economic action, that is, as though they were the product of rational choice, a conception importing the promise of ideal control, [FN54] on the compensation account torts are treated, in contrast, as though they arose from any or no cause, as random, hence as fortuitous, as befalling without the prospect of control. In *949 a word, the Coasian account presents tortious events as though they were like a deliberate punch in the nose, the compensation account as though they were like lightning, falling from the sky upon its victims. [FN55]

To the extent that this view of tortious harm as random contributes to the decision to spread tort losses, the objection of the Coasian economists that such spreading will encourage carelessness--the moral hazard objection- -is wide of the mark, as it fails to grapple with this sense of randomness but denies it outright. [FN56] In the face of this apparent randomness, a failure to spread the cost of tort losses would appear to be arbitrary, and inexplicably acquiescent given the Realist understanding that the development of administrative regimes is the proper goal and use of law and the centralized provision of financial supplements the appropriate remedy for loss.

And yet this sense of randomness in connection with the genesis of tortious harms is strikingly transformed when these theories turn to the means of dealing with those harms. Those means--the administrative regimes that figure centrally in the compensation theorists' plans for dealing with tort losses-- are not at all random, in the sense of capricious or erratic, but on the contrary highly systematic. By processing large numbers of claims for losses viewed in terms of scheduled dollar amounts and so as similar, these regimes are expected to provide a streamlined way of administering compensation for tort losses, much as for other losses such as unemployment or disability under existing programs. This streamlined administration regularizes and routinizes tort losses such that, owing to the large numbers of claims processed and the methods of rationalization brought to bear upon them, they are rendered patterned and *950 manageable. [FN57] In this way, such programs offer the prospect of managing the fortuity of tortious loss--that is, mastering it, negating its very fortuitousness. To this end, they promise the security of payment apart from the vagaries of proof of fault, and regularize that payment, and thereby the fortuity of loss, across the relevant population. In this way the apparent randomness or will-lessness of tortious events is tamed and negated, through the systematic exercise of will in the construction and operation of the social compensation mechanism.

Thus control and will are not, finally, absent from the compensation model, as first appears, but are instead "writ large," displaced to the level of social structure and the rationalization of the field of tort as a whole rather than operating at the level of individual rational actors. [FN58] This shift, from "micro" to "macro" control of torts, is accompanied by a shift in the time frame for the control of torts from ex ante to ex post: Whereas the Coasian economic model looks to enforce the bargain that the parties would have reached in advance of the tort but for transaction costs, the compensation model looks to rationalize the costs of the tort after the fact. And both of these shifts arise from the deeper dynamic that belongs to the way of thinking that compensation theory embodies.

*951 That way of thinking is one increasingly concerned with effects, and it is in tracing the theory's concern with effects that we can glimpse the underlying dynamic: The doctrinal impetus toward the adoption of compensation programs in place of tort law emerges from the understanding of compensation as the aim of tort law and the perception that the compensation programs offer greater efficiency in delivering on that aim--in short, from seeing compensation and efficiency as the twin desiderata of any system for dealing with tort losses. These are, moreover, closely related: Efficiency is the virtue of a means for achieving an end which minimizes costs relative to other available means. Since costs are economic effects of actions, [FN59] efficiency is a concern

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with second-order effects, that is, with the economic effects of the means used to reach the end, or effect, ultimately sought. As that end, compensation is itself a concern with effects, namely, with the relief of the costs, or economic effects, of the tort. Those costs, while falling where they will (this is the "random" element of the compensation theory, absent from the Coasian economic account), are not to be permitted to remain, but are to be relieved--that is, undone as effects.

There is, then, a progressive, triple displacement of the object of tort law away from the tortious action itself toward its effects. The path of tort theorizing--its movement from concern with fault, to concern with deterrence, bargaining, and internalization of the costs of torts, to concern with compensation for those costs--can be seen as moving ever further along a dimension of concern with effects: First, tort law's concern with fault is a concern with the cause of the harm, which is thus the effect of the fault. The Coasian economic account, the next stage in tort theorizing, is concerned with the cost of the harm (its effect, and so the effect of an effect), and seeks to control it by looking to the effect of that cost on action, which is presumed to be determined by such cost effects. Compensation theory, the third stage of this progression, is concerned with the effect--as effect, that is, as remaining in effect--of the cost (effect) of the harm, and seeks to relieve that cost and so to deprive it of effect. Predictably, the final point of interest for the compensation theorists is overall efficiency, the cost of the systems they propose--that is, the effect of the system they devise for undoing the effect of the effect (that is, the cost) of the harm, itself the effect of the tortious action. Plainly, it is the *952 ongoing demand of effectiveness that is driving this theoretical movement. [FN60]

In sum, the compensation model undertakes to exercise control over the effects of tortious events in a way that can be seen as more complete and more radical--but not fundamentally different--than on the Coasian economic model. Despite the apparent abandonment of causal thinking in the dropping of the search for fault, the compensation model actually presents a renewed focus on effect, and on the undoing of effect, that intensifies rather than relaxes the search for effectiveness, the index of cause. In addition, the model substitutes the causal efficacy of the social programs it proposes, and finally of the body politic in instituting them, for that of individual tortfeasors, and so presents a more systematic and thoroughgoing exercise of control brought to bear upon the effects of tortious events.

Moreover, in endeavoring to provide compensation for the economic loss arising from torts, the compensation model seeks to relieve the effect of that loss, to lift it from remaining in effect as a loss. Because, on this account, it is having effects that matter, that count as real, to "undo" the effect of the loss is to deprive the loss of reality. [FN61] To "undo" the loss in this way is to seek to *953 render it as never having happened, and so to assert control over time as well as harm. Thus the movement from the ex ante standpoint of the deterrence model to the ex post compensation model represents no relinquishment of control, but rather an attempt to exert control over the past rather than only the future. [FN62]

C. The Fundamental Affinity of the Coasian and Calabresian Accounts of Tort Law

These two schools of tort theorizing are, finally, very closely allied. Both understand the purpose of tort law to lie in its management of the costs of accidents. Both reflect the desire to master tortious harms by rationalizing them; only the means of that rationalization differ, as it is in the nature of means to do. Both, accordingly, share a number of the tools of rationalization, including treating liability as a cost and aggregating the occurrence of tortious events so as to subject them to probabilistic methods that obscure their adventitious quality. And both, aiming to rationalize tortious harms, find that their theories have no need or place for explicit concern with the harm's causation, historically a principal focus of inquiry under the law of torts. The "evaporation" of causation within each is, however, only apparent: Causation, as a mode of relatedness, actually grows to such importance and scope that it becomes the "normal case," the exclusive understanding of the relations among ourselves and between ourselves and things. [FN63] This general understanding of cause becomes so dominant that it disappears; against it, only the special case appears salient, and dispensable. As with water turning to mist, however, what evaporates continues to surround us, imperceptibly, and all the more thoroughly.

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Moreover, both theoretical schools understand the justification of tort law in the same way, though they draw discrepant conclusions as to whether that justification is met. The divergent policy recommendations of these schools of theory stem from an empirical dispute: whether the deterrence thought to be provided by tort law operates as the Coasian economists surmise, or whether this effect has been overestimated to the detriment of rational administration of the costs of injury, as the compensation theorists hold. The compensation theorists are willing to abolish tort law in part because they doubt its deterrent *954 effect. [FN64] In making this empirical claim they implicitly agree with the Coasian economists that such an effect would be justificatory, should it exist; since it does not, tort law, lacking justification, is fit for abolition. Their affirmative claim is that the social compensation systems they propose provide a superior means of rationalizing the cost of tortious harms. In resisting this claim by raising the moral hazard objection, the Coasian economists, similarly, dispute the empirical efficacy of these proposals but not their justificatory basis in rationalization; rather, they simply claim that that rationalization would be overbalanced in fact by an increase in undeterred tortious conduct. In sum, whether phrased in terms of deterrence and bargaining, or of social insurance, the agreed aim is the rationalization of the cost of accidents.

These two schools, separated by disagreements which are empirical and contingent, are thus fundamentally allied with respect to the rationalizing aim of tort law. This unity in turn reflects a shared, unarticulated view of law and of tortious events, according to which such events are the effects, whether intended or fortuitous, of action. Seen as intended, these effects are to be internalized, bargained over, or deterred; seen as fortuitous, they are to be relieved and distributed. All are dealt with by our aiming to control these effects and subject them to our will, whether ex ante through deterrence or ex post through rationalizing their cost. In treating them under these legal regimes, we thus bring our will to bear upon these events, creating another layer of effects with respect to them--the reduction of tortious harm to efficient levels, or the annulment, through compensation, of its losses.

In doing so, we understand law to be available for our use in achieving these effects, and thus to be--like the actions and structure of torts on which it is brought to bear--subject to our devising. Thus our understandings of law, and of the actions and events we wish to control through its use, reflect the same instrumental orientation. As both the Coasian and the compensation accounts reveal, on this understanding, tort and all law is seen as properly manipulable in response to cost concerns and other empirical effects, an expendable instrument with which to administer incentives and implement policy choices. That law is ours to "do away with," as compensation theorists recommend, becomes the unexceptionable conclusion to the rationalizing drive. The Coasian economists, too, are amenable in principle to this annihilation of law, since their preservation of the tort system relies on a ground that is empirical, and so contingent, and which understands the law's continued existence to depend upon its instrumental satisfaction of the goal of efficiency. Indeed, in regarding law in this way, these schools already understand the law as nothing other than such *955 an expendable instrument, and so, in any sense other than this, as already annihilated.

Significantly, both these theories "of tort law" actually leave tort law behind in their efforts to explain or rationalize it. On the Coasian view, where tort law is seen as a matter of and for bargaining, causation loses its sense and specificity, and the tort standards of conduct, emptied of content, are no longer either distinctive (as they no longer appear distinct from each other, or from economic rationality) or meaningful, as standards of conduct, as obligatory. On the compensation view, where tort law is seen as a mechanism for the spreading of losses, the tort system comes to appear quaint and outmoded, fit to be fragmented or abolished in order to further the rationalization of the costs of accidents.

This evaporation of tort law--its appearance as obsolete, and so fit for abolition--and the evaporation of the obligatoriness of law, are not simply odd phenomena that happen to accompany these doctrinal developments, but are of the essence of those developments, which are founded upon the drive to rationalize tortious harms. The rationalizing drive displaces the traditional relations and concerns of tort law because it seeks a different end, one in the light of which they are expendable. The "end" of rationalization is, however, a peculiar one in that it presents no goal or state to be finally attained, but rather is inherently provisional and insatiable, as it is the un-

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ceasing search, always, for what is more, or better, or more efficient. Accordingly, all systems proposed in its name, and all law seen as furthering it, are necessarily contingent and expendable.

In sum, the rationalizing drive undergirds and pervades modern tort law and affords a provocative way of understanding its career as well as its difficulties; it does not, however, preserve it--the claims of the Coasian economists notwithstanding. Rather, it is precisely this resort to the "economic" idea of rationalization (the idea, that is, that we properly deal with tortious harms by subjecting their cost either before or after the fact to our calculative reason) that not only allows the development of modern tort law from its stage of concern with fault to that of concern with efficiency, but, when given straightforward extension by the architects of strict liability and then of the compensation programs, consumes tort law and leads to calls for its abolition. Despite appearances, this latter development presents no theoretical apostasy, but is *956 instead simply the doctrinal course along which our reliance on rationalization leads. [FN65]

Neither the Coasian nor the compensation theory can account for the basic structure of tort law--with a tortfeasor paying compensatory damages to a tort victim for harm caused by his action--as an enduring, necessary, or fitting part of tort law, but only as the residue of political inertia or self-interest, or as making a contingent contribution to the rationalizing end. The deterrence rationale offers no ground for the connection of tort damages with the victim; the compensatory rationale, none for the connection of compensation to the tortfeasor. And neither retains the distinctiveness of the occasion for tort law as residing in tortious action resulting in harm, but collapses it into general inefficiency, where no harm need transpire, or general misfortune, where no action need bring it about. Faced with these mirror-image deficiencies, a third group of tort theorists tries to preserve, or at least to explain, the connections that these two variants of economic tort theory cannot. To do so, they turn from economic analysis to moral theory. Their theories are the subject of the next section.

III. MORAL THEORIES OF TORT LAW

Both the bargaining model of tort law and the compensation model are derived ultimately from economic premises that include a commitment to a variant of utilitarianism. [FN66] Accordingly, those theorists who find these models inadequate and seek alternative ways to understand tort law start, for the most *957 part, from an expressly non-utilitarian outlook. The resulting theories invoke deontological considerations, and are often styled "moral" theories of tort law, although utilitarianism, too, is a widely held moral theory. [FN67] The claim of this group of theorists to present the "moral" theory of tort law is not, then, a claim that they alone are concerned with moral issues but rather a claim about the nature of tort law. Implicitly denying the strict separation of positive and moral law maintained by the utilitarian economists, these theorists seek to uncover the moral judgments conveyed by the structure of tort law, and resist the view that separates and subordinates the structure and principles of that law to utility. In short, they endeavor to show how tort law is itself moral, and reflects moral judgments--rather than how it is, or may be made, useful. In dismissing utility as a candidate for the relevant moral criterion, however, this effort also implicitly disputes the adequacy of utilitarianism as a moral theory. [FN68]

This much these theories largely share; thereafter, they diverge. They present a less consonant group, and, some contend, less coherent theory, than do the bargaining and compensation schools. This greater variety of theoretical approaches and lesser success in gaining adherents are not, however, signs of scholarly disarray or sloppiness; on the contrary, the moral tort theorists can be seen as making a greater effort than do their economic and compensation colleagues to stay "within" tort law itself in their search for its justification, rather than turning to policy justifications that lie in some sense outside its confines. The difficulty of finding a justification therein is genuine, and it is this that accounts for the lesser "success" of these theorists. A variety of theoretical paths have been traveled in an effort to meet this difficulty, though its source and nature have gone largely unremarked. Because of this variety, it is necessary to look to each of the four principal theories of the last two decades--those of Fletcher, Epstein, Coleman, and Weinrib--seriatim, before *958 turning to consider the underlying premises these theories reveal and their implications for understanding the enterprise of tort theorizing.

A. Fletcher's Theory of Reciprocity

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The first of these theories was proposed by Professor George Fletcher in a single, widely noted article that appeared in the Harvard Law Review in 1972. Titled Fairness and Utility in Tort Theory, [FN69] it begins by distinguishing two "paradigms," or models, of tort thinking. One of these, which Fletcher labels "reasonableness," encompasses not only the economic formulation of the fault standard, but all tort decisionmaking based on deterrence or other social welfare considerations. It is this model that Fletcher finds to be dominant in tort law, and to be lacking in moral justification because it bases legal sanctions upon considerations extraneous to the actions and capacities of the tort litigants themselves. In short, Fletcher objects to the potential for sacrifice of the individual to the social good implicit in every utilitarianism.

The alternative "paradigm," which Professor Fletcher labels "reciprocity," looks to impose liability whenever a defendant has, without excuse, engaged in a "nonreciprocal" risk, one "greater in degree and different in order" than those risks created by the plaintiff, a formulation which critics have seized upon as vague. In cases of strict liability, reciprocity "is analyzed relative to the background of innocuous risks in the community," whereas for negligence it "is measured against the background of risk generated in specific activities like motoring and skiing." (This distinction, too, has been found problematic by Professor Fletcher's critics.) Both the reciprocity and reasonableness models, then, are methods of determining in which areas of social life liability for risky activity will not lie: Those in which the risk-creating activity in question, on balance, enhances social welfare, or those in which the activity is a common one, engaged in by both parties, who are thereby understood to have agreed in some sense to suffer the risk from the other.

Fletcher's reciprocity idea constitutes his affirmative theory, a proposed alternative to utilitarian tort theory. While this is, I believe, the source of the considerable interest his article aroused, the breadth and mixed nature of the *959 claims he made for the theory seem to have condemned its reception. Thus, for example, although the idea is (so far as appears) original with him, Professor Fletcher claims for the reciprocity idea both a historical pedigree and expression in a variety of current doctrines and cases. Thus he argues not only that the reciprocity "paradigm" is morally preferable to that of reasonableness, but also that, as a matter of historical fact, it preceded the rise of the latter in the nineteenth century, and further, that it continues to operate in tort law. [FN70] He thereby conflates his positive and normative claims (as well as his historical and contemporary claims), and his critics take advantage of the equivocation to avoid the force of the idea itself. Thus, for example, Posner faults Fletcher for ignoring the actual presence of efficiency considerations in tort doctrine, [FN71] and Calabresi and Hirschoff do the same for distributive considerations. [FN72] None of these critics adequately confronts the normative claim against these utilitarian *960 considerations, except to reassert their propriety.

Similarly, the critics treat harshly Professor Fletcher's claims that his reciprocity paradigm is descriptively accurate, disputing both its historical validity and its presence as the rationale for particular cases and doctrines. [FN73] Yet for a normative theory Fletcher need make neither of these claims, but only one going to the adequacy of the theory as an account of our pre-theoretical moral understandings and their justifiability. [FN74] In this regard, he might have continued to follow Rawls, [FN75] from whose theory he otherwise profits.

It is, in fact, in the Rawlsian elements of Fletcher's theory that the outlines of the theory and its strengths and weaknesses emerge most clearly. Like Rawls, Fletcher is concerned to present an alternative to dominant utilitarian moral theory. Like Rawls, Fletcher argues that his alternative is morally preferable to utilitarianism because it preserves individual autonomy, understood *961 as freedom of choice. In Rawls's theory, that choice is a hypothetical one, and concerns the principles that govern political liberty and the distribution of social and material resources. In Fletcher's, the choice is an actual one, and concerns the level of risk one will impose and to which one thereby agrees to be subject. For both, the solution is contractual and proceduralist: Whatever political arrangements the parties would agree to in the original position, as whatever risks they both engage in and are thereby understood to agree to, are ipso facto legitimate.

This last point suggests the source of some of the dissatisfaction with such theories, as well as of some of the specific points raised by Professor Fletcher's critics. Proceduralism is, by design, contentless, and so declines to

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sumption of distributability on which they rest); and (3) agreement as the touchstone for legitimacy in reaching political solutions. These three themes are tightly interwoven: Evenness is of concern in connection with distribution, and it is distributional questions, among others, that are to be answered by reaching agreement. Moreover, the requirement of agreement itself goes far to ensuring equivalence as the distributional solution, because of the equivalent distribution of the power of agreement. (Herein lies the crux of Rawls's system.) Less obviously, the assumption of distributability, entailing decision and political choice, is closely related to the resort to agreement-- assent of the will--as legitimating the solution. These themes are further conjoined under the rubric for such theories, "fairness": Equivalence in distribution is called substantive fairness, the provision for agreement procedural fairness.

The attractions of these themes are also related. As suggested, the assumption of distributability and the understanding of agreement as the necessary and appropriate means of legitimation rest on a shared foundation of will: Political right is made to depend on the assent of the will, and material conditions are seen as the effect of its exertions. Equivalence, too, can be understood as contributing to this project of control through the will, in this case control of others through the mutual enforcement of equivalence. (Seen thus, equivalence as a political desideratum has its roots, not in fellow-feeling or the *964 bonds of solidarity, but in atomistic envy and selfinterest. Rawls's system, where equivalence is chosen because under the circumstances it is the way to maximize one's own gain, makes this aspect transparent.) It is thus the prospect of control that constitutes a chief attraction of these three themes. In addition, each embraces an implicit atomism which also contributes to the prospect of control, in suggesting both its possibility and its necessity.

In connection with risk, Professor Fletcher's specific application of this general theory, the idea of control is highly attractive, but also revealingly paradoxical. The theory of reciprocal risk assumes a firmness to the idea of risk--a sense of it as knowable and measurable such that it can be distributed and equalized--that approaches that of economic theory, which quantifies risk as probability. [FN79] When risk is imagined thus, as within our knowledge and control, it loses its character as mysterious, unknown, dangerous--as risky--and undergoes a transformation into its opposite (much as happens in the compensation treatment of tortious events, seen as random, through systematic rationalization [FN80]). In seeking to control risk, we seek to master it-- and thus to deny it--by turning it into something solid and certain. Evidence of this effort, and of our success in it, appears in the way the original sense of risk as danger has been overrun by the sense of risk as calculated odds. [FN81] Professor Fletcher's efforts can be seen to fall squarely within this project. His theory provides for the subjection of risk to our willful assent through enforcing schemes of distributional equivalence; but there is no room in the way of thinking that such a theory embodies for the idea that risk, qua risk, may lie beyond the reach of such efforts.

Professor Fletcher's theory remains important as an early attempt to examine the utilitarian view of tort law critically and provide an alternative to it, though one finally beset by difficulties. Significantly, those difficulties are not attributable to the limitations that any single article may be thought to face, but inhere as well in a thoroughly worked out theory of the same sort, as the repeated references to Rawls are intended to show. These references also underscore, and take seriously, the claims made for the moral tort theories that tort law embodies moral judgments, grounded in a variety of moral theory concerned with the justification for attributions of responsibility for harm. As amplified by Rawls, Fletcher's theory can be placed within the spectrum of moral theory, and questioned accordingly.

*965 Professor Fletcher rejects utilitarianism because it views the doctrines and standards of tort law as only a byproduct of efficiency, or its synonym, rather than as presenting an independent claim of right. Yet under Fletcher's Rawlsian theory, where distribution is at issue and assent the touchstone, those same doctrines and standards appear instead as the byproduct, or synonym, of rational self-interest. One might be skeptical of the claim that such a theory offers a more attractive moral ground for tort law than does utilitarianism; indeed, at bottom, they have much in common. [FN82] The moral theorists' search for a robust alternative to the utilitarian economic theories of tort law does not, then, appear to be satisfied by looking to Fletcher and Rawls.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 28 Val. U. L. Rev. 919)

B. Epstein's Theory of Strict Causal Liability

A second theory of the moral justification of tort law appears in a series of articles on torts written by Professor Richard Epstein. In the first three of these he undertakes to construct a theory of tort law around a principle of strict liability grounded in causation and divorced from the "reasonableness" criteria of both moral and economic standards of negligence. [FN83] Like the other moral *966 tort theorists, he seeks to derive legal responsibility from the relation between the defendant's act and the plaintiff's harm, and generally refuses to allow liability to be governed by utilitarian considerations extraneous to that relation. His theory is novel in that it resorts to a standard of strict liability, which at least since Holmes has been stigmatized as unjust because it does not make liability determinations turn upon the defendant's intention, care, or ability to foresee or avoid the harm in question, matters thought germane to judgments of the moral quality of action. As will be seen, Epstein avoids this problem in part by moderating the strict liability conclusion, treating it as only prima facie, and in part by recourse to a moral atomism that allows him to regard such defensive matters as the defendant's "own problem," from which the plaintiff is and should be insulated.

The general outlines of Professor Epstein's theory reflect an understanding that tort liability is a straightforward expression of the responsibility that ordinary moral judgment assigns to causal force: A hit B; therefore, A is liable for the resulting harm to B. Under his theory, then, a prima facie case of liability exists whenever a party injures another in accordance with any of four "paradigms" of causation. [FN84] The simplest of these, "A hit B," is the theme; the others--"A frightened B," "A compelled B to hit C," and "A created a dangerous condition that resulted in harm to B"--are conceived as variations on that theme. These latter three "paradigms" are more attenuated and complicated than the first, and these complications, as well as conflicts among the paradigms, provide much of the matériel with which Professor Epstein's critics take aim. [FN85]

The "prima facie" character of the case for liability on causal grounds is crucial to Professor Epstein's system. Its establishment is the opening, not the conclusion of the case, for Epstein relies upon a tightly structured sequence of pleadings to allow certain defenses and limitations upon recovery to enter in their turn. Thus, defenses (from which Epstein excludes utilitarian or "defendant-based" defenses such as private necessity) enter into the defendant's response once the plaintiff's prima facie case has been made. Intention is reserved for a third round of pleadings by the plaintiff, and is conceived as overcoming a defense, such as assumption of risk, introduced in the second. A *967 potential fourth round deals with claims of excuse or justification for the intentional harm, and, in theory, subsequent rounds are available as well. In this way some matters usually excluded by strict liability eventually make their way into the determination of liability, and Professor Epstein's "strict" liability system can deflect traditional criticisms of their omission.

This basic structure--strict liability grounded in causation, understood in a simple physical way as the application of force, generating a prima facie case to be developed by means of alternating opportunities to plead- -suggests an orderly, appealingly straightforward system for determining liability. Indeed, its simplicity and clarity constitute its chief virtue, as Professor Epstein explains, for example, in his defense against Judge Posner: "The great advantage of the corrective justice theory [that is, Professor Epstein's theory] is that it yields clear and unambiguous results in an area in which the economic theory, rigorously applied, can never come to determinate solutions." [FN86] That such certainty--rather than its superior capacity to accord with our sense of justice, or experience of events of harm, or policy goals thought to be served by tort law--is indeed the theory's principal attraction and guiding desideratum helps to explain a number of its otherwise puzzling aspects.

Thus, for example, the reliance on a strictly sequential pleading ritual seems oddly atavistic in an age of notice pleading, and calls to mind the ills and pitfalls for untimely claimants thought to be associated with the old forms of action. Yet, however harsh their implementation may be in practice, such pleading rules undeniably afford clear and unambiguous results. While it is not clear whether Professor Epstein contemplates such drastic preclusion under his proposed system, its amelioration, such as through liberal access to amendment, would threaten the very advantages of clarity and certainty that he understands his system to offer.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.